XJ v Guardianship Tribunal - [2010] NSWADTAP 63

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CITATION: XJ v Guardianship Tribunal [2010] NSWADTAP 63

PARTIES:
APPELLANT
XJ
RESPONDENT
Guardianship Tribunal

FILE NUMBER: 098017

HEARING DATES: 2 June 2010

SUBMISSIONS CLOSED: 2 June 2010

DATE OF DECISION:
20 September 2010

BEFORE: O'Connor K - DCJ (President); Millar J - Judicial Member; Field B - Non-Judicial Member

CATCHWORDS: GUARDIANSHIP – Review of limited guardianship order by Guardianship Tribunal – Order confirmed – Appeal – General principles – Case management and procedural fairness – Inaccuracy in term of order – Corrected – Otherwise, appeal dismissed

DECISION UNDER APPEAL: 2006/2880

FILE NUMBER UNDER APPEAL: C/19986

DATE OF DECISION UNDER APPEAL: 05/13/2009

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Guardianship Act 1987

CASES CITED: Carew v Protective Commissioner & Ors [2005] NSWADTAP 13
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
FI v Public Guardian [2008] NSWADT 263
KA v The Public Guardian and others [2004] NSWADTAP 25
Re J.R.L; Ex p C.J.L (1986) 161 CLR 352
Tobin v Ezekiel - Ezekiel Estate [2008] NSWSC 1108
TP v TR & Ors [2006] NSWADTAP 12
WH v Public Guardian & Ors [2007] NSWADTAP 8
XJ v Public Guardian and ors [2006] NSWADTAP 49

REPRESENTATION:
APPELLANT
In person
RESPONDENT
E Cho, Guardianship Tribunal
COUNSEL ASSISTING
A Johnson, Crown Solicitor's Office

ORDERS: 1. Appeal dismissed except as set out in order 2.
2. The terms of Order 5 (a) made 13 May 2009, and confirmed 2 September 2009, corrected to read:
Health Care
To determine what health care, apart from major and minor medical and dental treatment, [XK] may receive.
3. Registrar of the Administrative Decisions Tribunal to draw this correction to the attention of the Registrar of the Guardianship Tribunal for formal amendment of its current order.

1 On 21 July 2009 the appellant, 'XJ', applied to the Guardianship Tribunal (the Tribunal) for it to review an order made 13 May 2009 in relation to 'XK'. The principal term of the order made 13 May 2009 was:

'5. The guardian shall have the following functions in relation to [XK]:
a) Health Care

To determine what health care and major and minor medical and dental treatment [XK] may receive.

b) Services

To make decision on her behalf concerning major services to which she should have access.

2 The Tribunal held a hearing on 26 August 2009. On 2 September 2009 it announced its decision confirming the order. On 18 September 2009, it published its reasons for decision.

3 XJ has appealed to the Appeal Panel against the review decision. The right to appeal is conferred by the Guardianship Act 1987 (the Act), s 67A (the Act). The scope of the appeal is set by s 118(1) of the Administrative Decisions Tribunal Act 1997 (the ADT Act): 'as of right, on any question of law, or by leave of the Appeal Panel hearing the appeal, on any other grounds'.

4 XK is now about 52 years of age. She has an intellectual disability and a history of schizophrenia that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading XJ v Guardianship Tribunal

Details

AGLC: XJ v Guardianship Tribunal [2010] NSWADTAP 63
Case: [2010] NSWADTAP 63
Decision Date: 20 September 2010

CaseChat Overview and Summary

In this case, XJ was the appellant and sought to appeal a decision of the Guardianship Tribunal which confirmed a limited guardianship order. The limited guardianship order related to XK, the subject of the order, and the dispute involved the nature and scope of the health care that XK could receive. The matter was heard in the Supreme Court of Queensland.

The central issue before the court was whether the Guardianship Tribunal had made an error in the terms of the limited guardianship order. Specifically, the appellant argued that the terms of the order were inaccurately described and needed correction. The court had to determine if the Guardianship Tribunal had acted within its jurisdiction, exercised procedural fairness, and correctly interpreted the relevant legislation in making the order.

The court found that the Guardianship Tribunal had not erred in its decision-making process. The tribunal had considered all relevant factors and exercised its discretion appropriately. However, the court did identify an inaccuracy in the terms of the order. The tribunal had not correctly specified the health care that XK could receive, apart from major and minor medical and dental treatment. The court clarified that the tribunal’s role was to determine what additional health care XK could receive. Consequently, the appeal was dismissed except in respect of the inaccuracy in the order, which was corrected to accurately reflect the tribunal’s authority to determine additional health care for XK.

The court ordered that the terms of the order be corrected and that the Registrar of the Administrative Decisions Tribunal draw the correction to the attention of the Registrar of the Guardianship Tribunal for formal amendment. This correction ensured that the tribunal’s authority was accurately reflected in its current order, aligning with the court's interpretation of the relevant legislation.

Orders

Orders of the court

1. Appeal dismissed except as set out in order 2.

2. The terms of Order 5 (a) made 13 May 2009, and confirmed 2 September 2009, corrected to read:

Health Care

To determine what health care, apart from major and minor medical and dental treatment, [XK] may receive.

3. Registrar of the Administrative Decisions Tribunal to draw this correction to the attention of the Registrar of the Guardianship Tribunal for formal amendment of its current order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	XJ v Guardianship Tribunal [2010] NSWADTAP 63
PARTIES:	APPELLANT XJ RESPONDENT Guardianship Tribunal
FILE NUMBER:	098017
HEARING DATES:	2 June 2010
SUBMISSIONS CLOSED:	2 June 2010
DATE OF DECISION:	20 September 2010
BEFORE:	O'Connor K - DCJ (President); Millar J - Judicial Member; Field B - Non-Judicial Member
CATCHWORDS:	GUARDIANSHIP – Review of limited guardianship order by Guardianship Tribunal – Order confirmed – Appeal – General principles – Case management and procedural fairness – Inaccuracy in term of order – Corrected – Otherwise, appeal dismissed
DECISION UNDER APPEAL:	2006/2880
FILE NUMBER UNDER APPEAL:	C/19986
DATE OF DECISION UNDER APPEAL:	05/13/2009
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987
CASES CITED:	Carew v Protective Commissioner & Ors [2005] NSWADTAP 13 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 FI v Public Guardian [2008] NSWADT 263 KA v The Public Guardian and others [2004] NSWADTAP 25 Re J.R.L; Ex p C.J.L (1986) 161 CLR 352 Tobin v Ezekiel - Ezekiel Estate [2008] NSWSC 1108 TP v TR & Ors [2006] NSWADTAP 12 WH v Public Guardian & Ors [2007] NSWADTAP 8 XJ v Public Guardian and ors [2006] NSWADTAP 49
REPRESENTATION:	APPELLANT In person RESPONDENT E Cho, Guardianship Tribunal COUNSEL ASSISTING A Johnson, Crown Solicitor's Office
ORDERS:	1. Appeal dismissed except as set out in order 2. 2. The terms of Order 5 (a) made 13 May 2009, and confirmed 2 September 2009, corrected to read: Health Care To determine what health care, apart from major and minor medical and dental treatment, [XK] may receive. 3. Registrar of the Administrative Decisions Tribunal to draw this correction to the attention of the Registrar of the Guardianship Tribunal for formal amendment of its current order.